Changes Coming to Canada’s Impaired Driving Laws

Last week, the Liberal government followed through on its election promise and introduced legislation to legalize marijuana in Canada. The fanfare over the newly-tabled Cannabis Act allowed concurrent changes to impaired driving laws to slip by without much notice in the media.

On Thursday, April 13, Justice Minister Jody Wilson-Raybould introduced major changes to the Criminal Code in respect to impaired driving offences. In its press release, the government wrote that the changes would, “strengthen existing drug-impaired driving laws and create a regime that would be amongst the strongest in the world, particularly where cannabis is legal.”

However, the changes will not only impact marijuana users. The legislation also introduces sweeping changes to the law on drinking and driving, such as:

Making it a crime to be over the legal limit for blood alcohol within two hours of driving, not just while driving; and

Limiting the “intervening drink defence” in which a driver demonstrates they consumed alcohol after driving but before providing a breath sample

But the biggest change, and the one which will face the most scrutiny, is the new authority granted to police officers in roadside traffic stops.

Currently, a police officer may only demand a breathalyzer test if he or she has reasonable suspicion that a person has been drinking and driving. Reasonable suspicion usually means an odour of alcohol on the driver’s breath, liquor bottles or cans in the vehicle, an admission of alcohol consumption, or other signs.

This is due to the protection against unreasonable search found in s.8 of the Canadian Charter of Rights and Freedoms. While a breathalyzer test is less invasive than a blood test or a saliva sample, it still constitutes a search. Currently, the law ensures that police cannot search someone for no reason, or on unreasonable grounds.

However, the new law would empower police to demand a mandatory alcohol screening during any lawful traffic stop, even if there is no reason to believe the driver has been drinking. This is a massive shift from the current law on traffic stops. Essentially, it would grant police the authority to demand breathalyzers from any driver for just about any reason.

This part of the law would likely be challenged in court as a Charter infringement.